9th Circuit Adopts Federal Circuit Holdings in Whistleblower Appeal

The 9th Circuit Court of Appeals adopted the Federal Circuit Court of Appeals’ holdings with regard to the test of whether an agency has carried its burden to prove whether the agency would have taken the same personnel action against an employee irrespective of the employee’s protected disclosures, and with regard to whether an employee may be disciplined for the manner in which he or she communicates a protected disclosure.

On February 26, 2018, the United States Court of Appeals for the Ninth Circuit denied a Department of Defense employee’s petition for review of the Merit Systems Protection board’s determination that the agency’s personnel actions were not in retaliation for the employee’s whistleblowing. In its opinion, the appeals court panel assumed for purposes of its analysis, without deciding, that the employee established a prima facie case that all seven of his communications were protected disclosures. The appeals court stated that the “pivotal question for decision, then, is whether substantial evidence supports the Board’s finding that the [agency] proved by clear and convincing evidence that it would have taken the same personnel actions against [the employee] in the absence of his protected disclosures.”

The appeals court noted that “[o]nce an employee establishes a prima facie case by showing that a protected disclosure was a contributing factor in the agency’s personnel action, the burden shifts to the agency to establish by “clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.” The appeals court defined “clear and convincing evidence” as “that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegation sought to be established.”

Two of the allegedly retaliatory personnel actions in this case were a proposed 10-day suspension and a resulting performance rating of only “minimally successful” in an area called “communication.” The low performance rating, as noted by the appeals court, also had the added effect of automatically restricting the employee’s telework privileges. The discipline stemmed, in part, from the employee’s conduct towards and public criticism of a new supervisor, in person and via e-mail. The employee claimed that his criticisms were protected disclosures about misconduct at the agency.

The appeals court also adopted the Federal Circuit’s holding that an employee may be disciplined for the way in which he or she communicates a protected disclosure. The appeals court cited Watson v. Dep’t of Justice, 64 F.3d 1524, 1528 (Fed. Cir. 1995), in which the Federal Circuit explained that an employer is entitled to basic civility, and that 5 U.S.C. § 1221(e)(2) does not require “that the adverse personnel action be based on facts completely separate and distinct from protected whistleblowing disclosures.” The appeals court held that “wrongful or disruptive conduct” was not shielded by the presence of a protected disclosure.

For the above stated and other relevant reasons, the United States Court of Appeals for the Ninth Circuit denied the employee’s petition for review.

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